Opinion
No. BG-17.
January 3, 1986. Rehearing Denied January 28, 1986.
Delia Doyle Rose, of Haas, Boehm, Brown, Rigdon, Seacrest Fischer, Daytona Beach, for appellants.
C. Kenneth Stuart, Jr., and H. Guy Smith, Lakeland, for appellee.
This is an appeal from a compensation order determining compensability and the identity of the employer, and awarding compensation benefits. We affirm because we find the deputy did not err in concluding that claimant's accident arose out of and in the course of her employment. We conclude also, on cross appeal, that appellant was correctly identified as the responsible employer.
The order reads in pertinent part:
. . . [S]ometime in the spring or early summer of 1982, fraudulent checks written to Smiling Jack's were unknowingly received by another clerk.
As a result of her employment duties, claimant came into physical possession and custody of the checks. . . . During the police investigation, claimant turned the checks over to a police officer. . . .
. . . [A]n assistant state attorney . . . testified the subpoena was issued to claimant solely because of checks accepted by Smiling Jack's. . . .
On 9/14/82 while in Bartow attempting to follow the mandate of the subpoena, claimant tripped and fell outside the Hall of Justice. . . .
Grimsley Oil took over several Smiling Jack's stores on 8/1/82, including the one at which claimant was employed. . . .
. . . [M]r. Ivey was claimant's supervisor under both employers. . . . [C]laimant stated she was unaware when Grimsley Oil took over the store. . . .
Based on all the evidence, I find claimant to be an employee of Smiling Jack's on 9/14/82 for purposes of Chapter 440 proceedings. I further find that claimant's injuries on that date arose out of and in the course and scope of that employment.
The sole reason claimant was in Bartow was pursuant to a subpoena which would not have been issued to her but for her employment with Smiling Jack's. . . .
Although the legal issues presented are complex and novel, the presumptions of Chapter 440 and recent appellate decisions mandate the result. It is obvious claimant's employment with Smiling Jack's created a hazard from which her injury arose. Jenkins v. Wilson, 397 So.2d 773 (Fla. 1st DCA 1981), Pet. for rev. den., 402 So.2d 610 (Fla. 1981). I also note the causative factors occurred during the time and space limits of claimant's employment with Smiling Jack's. Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla. 1980). . . .
This type situation appears to have been contemplated by the Court in Strother when it quoted Larson, Workmen's Compensation Law, for the following proposition:
The time bomb, so to speak, is constructed and started ticking during working hours; but it happens to go off at a time and place remote from the employment. The hazards of the employment, whether the animosity of a fired employee, a needle-like shaving in the eyebrow, or dynamite cap in the pocket, follow the claimant beyond the time and space limits of his work, and there injure him.
Affirmed.
WENTWORTH and JOANOS, JJ., concur.
THOMPSON, J., dissents with written opinion.
I dissent.
The deputy commissioner found that the claimant was an employee of Smiling Jack's Markets, and, relying on Jenkins v. Wilson, 397 So.2d 773 (Fla. 1st DCA 1981), pet. for rev. den., 402 So.2d 610 (Fla. 1981) and Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla. 1980), found that her injury arose out of and in the course of her employment. If applicable those cases would be controlling, but they are not even remotely similar factually to this case. In both Jenkins and Strother the claimant was an actual employee at the time the injury occurred. In the instant case the claimant was not an employee of Smiling Jack's Markets at the time the injury occurred, and had not been for more than six weeks prior to the injury.
In Strother our Supreme Court stated:
We hold that to be compensable, an injury must arise out of employment in the sense of causation and be in the course of employment in the sense of continuity of time, space, and circumstances. This latter factor may be proved by showing that the causative factors occurred during the time and space limits of employment. (Emphasis supplied.)
383 So.2d at 628. In holding that the claimant's accident and injury arose both out of her employment and in the course of her employment the Strother court further said:
Thus, employing this test, we hold that Strother's injury is compensable. There is no issue that the injury sustained as a result of the assault arose out of employment. Furthermore, it had its genesis at the place of employment since the assailants were actually on the business premises, casing it so to speak, and, then when Strother left, they followed her home and there assaulted her and robbed her of her purse which they thought contained the cafeteria's cash receipts. The time bomb began ticking while she was on the business premises and during working hours.Id. While the injury in this case may have arisen out of claimant's employment, it did not occur in the course and scope of claimant's employment. There is no continuity of time, space, and circumstances as required by Strother. As pointed out by the court in Strother that injury had its genesis at the place of employment since the assailants were actually on the business premises, casing it, and when Strother left they followed her home and assaulted her and robbed her of her purse. In the instant case claimant was injured while going to a location in response to a subpoena by an assistant state attorney. The action of the assistant state attorney in issuing the subpoena was not and could not be controlled by Smiling Jack's Markets. Smiling Jack's Markets had not been the employer of the claimant for more than six weeks and had no means to compel or even encourage the claimant to comply with the subpoena.
In Jenkins the court held that the claimant's injury from an assault in a parking lot leased by her employer arose out of and in the course and scope of her employment because as a result of her employment the claimant was more susceptible to an attack since she stayed late at work on the afternoon in question and as a consequence was alone in the parking lot at a late hour. In Jenkins, as in Strother, there is no factual similarity with this case. As a consequence of working late for her employer Jenkins was alone in her employer's parking lot at a late hour. In the instant case the claimant was not even employed by Smiling Jack's. She was not injured on premises owned or leased by Smiling Jack's and she was not at the place of injury as a result of any action by Smiling Jack's. On the contrary, she was at the scene of her accident as a result of the subpoena by the state. In Jenkins there was continuity of time, space, and circumstances as required by Strother, but this cannot be said of the case sub judice.
I would reverse the order appealed and dismiss the claim.